Schweppe v Closier & Anor

For tort claims based on fraud, limitation is postponed only until the claimant discovers the precise deceit relied on, or could have discovered it with reasonable diligence. A claim may also be an abuse of process where substantially similar allegations should have been raised in earlier proceedings. The court must assess all the circumstances, including delay, oppression and whether a fair trial remains possible. Different defendants in later proceedings do not prevent an abuse finding.

The claimant, as purported assignee of Murray Construction Ltd, brought claims for fraudulent misrepresentation, unlawful act conspiracy and inducement to breach contract arising from a 1990–1992 construction project.

The defendants applied to strike out the claim as statute-barred and abusive. Earlier proceedings concerning the same development had been struck out. The issues were whether the claimant knew, or could with reasonable diligence have discovered, the alleged deceit before the limitation period, and whether the claims should have been brought earlier.

1. The claims were subject to the six-year limitation period under section 2 of the Limitation Act 1980. The applicable postponement provision was section 32(1)(a), concerning claims based on fraud.
2. The claimant’s letters of August and September 2010 showed knowledge of the precise allegations later pleaded. The claim was therefore statute-barred.
3. Alternatively, applying Paragon Finance PLC v DB Thakerar [1999] 1 All ER 400, the claimant failed to prove that the relevant facts could not have been discovered with reasonable diligence.
4. Applying Johnson v Gore Wood & Co (No. 1) [2002] 2 AC 1, Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14 and Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260, the proceedings were an abuse of process. The allegations should have been raised earlier, could not now be fairly tried, and formed part of oppressive conduct.
5. The claim was struck out. Costs and consequential matters were reserved.